Claim Group
5 The native title claim group is the Budjiti People. They are the biological descendants of Jessie Brooks, Gypsy Brooks and Lizzie Brooks.
6 For the reasons which follow, I am well satisfied that the Court should make a determination over the whole of the area of the Budjiti claim, under s 87 of the NT Act. It provides that where the parties to proceedings that hold an interest in the proposed determination area agree on the terms of a consent order the Court may, if it appears to be appropriate to do so, make an order in those terms without conducting a hearing: Lovett on behalf of the Gunditjmara People v Victoria [2007] FCA 474 (Gunditjmara).
7 When making an order under s 87, it is not necessary to examine at length whether the agreement between the parties is grounded on a factual basis which would satisfy the Court at a hearing of the application: Gunditjmara. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis.
8 It is clear that the State of Queensland has taken steps to satisfy itself that there is a credible basis for the application. Nevertheless, s 87 of the NT Act requires the Court to be satisfied as to the appropriateness of the proposed orders. As native title rights are rights in rem, attaching to the land and having effect as against the whole world, the Court has an oversight function to ensure that there is a proper basis for recognition of the those rights: Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229.
9 As I have indicated, the materials that have been filed and served on all respondent parties including the State to date in this matter are more than sufficient to demonstrate that their application has a credible basis. I am also satisfied that the procedural requirements of s 87(1) are met. In particular, the Determination to be made is consistent with s 94A of the NT Act and there has been no previous determination of native title in the claim area.
10 Section 94A requires the proposed orders to set out details of the matters mentioned in s 225 of the Act. Section 225 defines a determination of native title as:
a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interest confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
11 The terms "Native title" and "Native title rights and interests" are defined in s 223(1) of the Act as:
…the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
12 There is an extensive list of the material before the Court to support the conclusions that I have reached. It is contained in the Annexure A to the written submissions on behalf of the Budjiti People. I shall not repeat it. It includes statements and affidavits of members of the Budjiti People, and a series of anthropological reports of Dr Kevin Murphy, and of Professor David Trigger and Dr Andrew Sneddon.
13 In addition, I have had the benefit of hearing directly from a number of the persons whose affidavits and statements are relied upon. Between 11 and 15 August 2014, the Court heard evidence both at Charleville, and at Eulo, and on various sites of special cultural or historical significance to the Budjiti People about their background, their genealogical lines, about their community, their upbringing and education into Budjiti cultural and social practices, and about the stories attaching to particular places on their country. Those witnesses included (in the order in which they gave evidence) Elizabeth (Liz) McNiven, Dinny McKellar, Philip Eulo, Millie Shillingsworth, Gordon Sullivan, Mick McNiven, LoranMcNiven, Nina Prasad, Ruby Eulo, Doreen McNiven, Ethel Hooper, Burt McKellar, Judy Shillingsworth, Beatrice Eulo, Grace Brown, Mareia Brown, Margie Hearn and Frank Kavenough.
14 It is not necessary to refer in detail to that evidence. It was consistently genuine and impressive. Obviously, some of those people had a greater knowledge or experience of Budjiti laws and customs and stories than others. Some had more opportunity to be exposed to and to learn them than others. There was clearly a structural social group of Budjiti People who were preserving and continuing to pass to younger generations their stories and their cultural and social practices as a communal group, and to preserve and maintain their country and knowledge of it.
15 It is appropriate to say a little more about the history of this claim and the evidence.
16 The explorer Thomas Mitchell travelled through the region from the Warrego River east to Cooper Creek in 1846. Settlement of the Budjiti lands through pastoralism followed in the 1860s. Pastoral stations established during this period within Budjiti country included Tinnenburra (1859), Eulo (1862), Currawinya (1862), Caiwarro (1862) and Dynevor Downs (1871).
17 At the time the Crown acquired legal sovereignty over the Claim Area, in the 1850s to 1870s there was a body of Aboriginal people who were associated with the land and waters of the Claim Area.
18 Those Aboriginal people were or have been variously described as:
Poidgerry named by Myles in Curr, 1886
Badjeri in Howitt, 1904
Byjerri in Mathews, 1898
Baddyeri in Mathews, 1905
Badjiri in Tindale, 1974
Badjidi and Badjedi in Tennant-Kelly, n.d.
19 Contemporary claimants refer to themselves as the Budjiti People. They also refer to themselves as the Paroo River People. They assert rights over traditional country that includes Eulo and areas to the north of the township. They are the traditional owners of country between Moonjaree Waterhole, located between Eulo and Cunnamulla, and Lake Bindegolly. Their country includes Hungerford, Lake Wyara, Lake Numalla, Lake Thorlinda and Cuttaburra Creek. Budjiti People consider their lands go south of the Claim Area to include Waanaring, Yantabulla and Enngonia.
20 The neighbours of the Budjiti People are the Kullilli to the west, Mardigan to the north and Kunja to the east. To the south of the Budjiti People are the Barkandji People and to the southeast are the Murrawarri.
21 The Budjiti People comprise the biological descendants of the three acknowledged apical ancestors referred to above.
22 Jessie Brooks, (born around 1878) is identified as a member of the Budjiti Aboriginal society of South-West Queensland, in the oral history of her descendants. This is supported by some documentary evidence. In the correspondence regarding the rejection of Charles Betters (a non-Aboriginal man) proposal of marriage to Jessie, Jessie is described as "a native of the Paroo about Caiwarro". This area is in the claimed Budjiti country, which reinforces the idea of Jessie as Budjiti. Jessie and Charles were never married due to prevention by government authorities. Jessie's relationship with Charles went from 1902-1903, and they had one daughter named Rose. Rose Betters married Charles McNiven, a Murrawarri man, and had seven children: Charles, Thomas, Kathleen, Doreen, Lorna, Percy, and Nancy.
23 Jessie Brooks also had an Aboriginal spouse named Toogler. According to oral history of the family, he was a Parundji or Barkandji man, originally from NSW Paroo River country (south of the Budjiti Claim area). Toogler and Jessie Brooks had two children - Bob and Clara. Bob was known as "Bob Toogler", "Bob Tuglar", or "Bob Barrett", among other variants. He is not known to have had any children. Bob Toogler and his sister Clara Hart (nee Toogler; Jessie's daughter) were recorded speaking Budjiti language by linguist Gavan Breen in 1969, 1971, and 1972. Breen notes that Bob Toogler was the most fluent of all present-day "Badjiri" speakers. Clara Toogler had children with three different fathers - Bertie Reynolds, George Hart, and Jimmy Eulo. Jimmy Eulo's father was also named Jimmy Eulo (Snr.); he was previously named as an apical ancestor on the Budjiti Claim. However, evidence from Ruby Eulo (Jimmy Eulo Jnr's daughter) and Ruby's nephew Phillip Eulo, shows that Jimmy Eulo Snr was not a Budjiti man.
24 Jessie Brooks was clearly a Budjiti woman, who held rights and interests in the Budjiti Claim Area, and consequently her biological descendants also hold rights and interests in the Claim Area.
25 Lizzie Brooks is commonly regarded as Jessie Brooks' sister. However, research has revealed no evidence that the two were biologically related. Nothing is known of their parents. Lizzie and Jessie could possibly have been classificatory sisters, and as such, Dr Murphy recommends they be treated "analytically as apical ancestors in their own rights".
26 The identification of Lizzie Brooks as a Budjiti woman is supported by the oral history of her descendants. In terms of documentary evidence, McKeown refers to "one independent source … in support of the claim that these women [the Brooks sisters] were Budjiti" - a recording made by the linguist Gavan Breen on the 15 July 1972, where Mary McKellar is speaking Budjiti.
27 Lizzie had three daughters (to unknown fathers) - Jessie, May and Ethel. There is speculation that Lizzie may have had a fourth daughter, named Gypsy. It is unknown whether Lizzie and Gypsy were mother and daughter, or whether Gypsy was the daughter of an unnamed sister of Lizzie. Lizzie's daughter Jessie (Jintu) is remembered by living Budjiti Claimants, including her grandson Danny or Dinny McKellar and Lorna McNiven (Jessie Brooks' granddaughter). Jessie had a son named Jack Barrett, to a man also named Jack Barrett. She also had a daughter with Jack Gwydir named Mary. Mary used the surname Barrett, and was more commonly known as "Nin". Mary (Nin) married and had eight children with Alf McKellar (a Kunja man).
28 Lizzie's daughter May had five children with a man named Charlie Martin, and three children with a man named Norman Turner (according to genealogies compiled by Gorecki [2009]). One of Lizzie's daughters, Doris Turner, refers to her mother by the name of "Nell Brooke" in a 2005 publication.
29 The existence of Lizzie's third daughter Ethel Brooks is widely accepted by descendants of Lizzie's other daughters, Jessie and May. The oral history of the family holds that Ethel moved to Sydney as a young woman. Her death certificate confirms this information, marrying Norman Coleman in Sydney.
30 The claim that Lizzie was a Budjiti woman is not known to be disputed by any Budjiti People, or by any others from neighbouring Aboriginal groups in South-West Queensland.
31 It is unknown whether Gypsy Brooks was the daughter of Lizzie Brooks, or the daughter of an unnamed sister (classificatory or otherwise) of Lizzie and Jessie Brooks. Gypsy Brooks is identified as a Budjiti woman through the oral history of her descendants. There is general acceptance of Gypsy as Budjiti among the Budjiti Claim group. Dr Murphy concludes that it is more likely than not that Gypsy Brooks was a Budjiti ancestor, "on the basis that the descendants of Lizzie and Jessie Brooks acknowledge that Gypsy was related to Lizzie and Jessie, although they are not sure how, and that [Gypsy's] descendants identify as Budjiti on the basis of their oral family history".
32 Budjiti native title claim group members acquire rights to land passed through their mothers and fathers linking back to one of the three apical ancestors; Jessie Brooks, Lizzie Brooks and Gypsy Brooks. These rights are contingent on the recognition by members of the Budjiti People.
33 There is evidence which shows that the Budjiti People have enjoyed and exercised their traditional rights over the claim area.
34 Aboriginal people were living around Currawinya Lakes and the Paroo River at least 14,000 years ago. There are occupation sites, camping places, ceremonial grounds and tool manufacture sites located within the application area. Camp sites were selected for their closeness to foods and resources. Bow Creek has stone artefact scatters. It is also a place where crayfish and yabbies are found in the creek and where pigweed, which is a source of vitamin C, is located. Reeds commonly found in the area would have been woven into baskets.
35 There are also places of cultural significance where the ancestral beings manifested themselves in the natural features of the landscape. The Stone Man, a rocky outcrop in Caiwarro Waterhole is one such place which is known to many Budjiti People and which Budjiti People frequently visit.
36 People travelled across the landscape following walking trails linked by springs and waterholes. The routes enabled people to utilise food resource places, to access sacred sites, to visit relatives at distant locations and to gather at ceremonial grounds. Claimants recall how their parents and grandparents would follow these routes. Judy Shillingsworth remembered how her mother Ruby and her grandmother, Clara Toogler, would travel up and down the Paroo River. One walking route went from Caiwarro to Yantabulla and Enngonia, all localities where Budjiti People resided. A trail went west from Turn Turn Station to Molesworth Waterhole on Kullilli country, enabling Budjiti People to visit their neighbours for trade and for ceremony.
37 Budjiti People remained on their lands providing an integral part in the pastoral industry. Several older claim group members grew up at Currawinya and Caiwarro Stations. They lived with their family who were the cooks, the drovers, the station hands and the maids. Trips were regularly taken onto country to impart knowledge, to hunt, fish and gather bush foods and to visit places of significance. For example Mick McNiven attended school in Cunnamulla but would return to country on weekends to join his mother at Caiwarro Station. As an adult he lived for many years with his partner at Yalata Station.
38 Today a small group of claimants live in the township of Eulo which is located inside the application area. Those claimants are Dinny McKellar, Lorna McNiven, Keith (Dulla) McKellar and Nina Prasad. Today, Budjiti People travel into the Claim Area to visit their family who live at Eulo.
39 The establishment of the townships of Eulo and Hungerford resulted in a group of Aboriginal people living at the edge of both townships in temporary structures. Budjiti People and other land holding groups were gathered together in these fringe camps. Several claimants remembered growing up in either Top Camp or Bottom Camp on the edge of the town. Several of the senior claimants appear in the School attendance handbook for Eulo.
40 Temporary shelters were utilised by claimants on camping trips onto the Claim Area. A bough shelter would be used by Judy Shillingsworth and her family when they camped at Caiwarro Waterhole. Claimant Dinny McKellar and his siblings would construct humpies laying cane grass onto a wooden frame. Dinny was shown how to make these waterproof dwellings by his grandmother Jintu (Jessie) and his grandfather Charlie Turner. Bruce Shillingsworth learnt how to build a gunyah from his mother, Ruby Eulo on camping trips. He recalled seeing the frames of abandoned gunyahs that had been erected by his mother during winter. Phillip Eulo also remembers as a child sleeping outside around the fire in a humpy and his grandfather teaching him how to make a windbreak out of hopbush. Philip still does this today.
41 Budjiti People who live in the Claim Area at Eulo and in the nearby towns of Enngonia and Cunnamulla frequently access the Claim Area to fish, camp and to harvest plants. Marcia Kay Brown, a resident of Cunnamulla, has said that she fishes on the Paroo at Eulo as, "It is a place where I feel entitled to go and where I feel at home". People regularly return to favoured fishing places. Nina Prasad fishes at the same locations on the river that were once visited by her mother.
42 Traditionally food gathering and hunting occurred in gender groups. Millie Shillingsworth remembered how the men went hunting and fishing as a group. The women went out separately to forage for bush foods and to fish. Today trips on country occur in family groups. Marcia Kay Brown takes her family to Eulo to fish. Elizabeth (Liz) McNiven stops to collect bush medicine with her family when travelling on her Budjiti country. Judy Shillingsworth hunts with her grandchildren for any wild meat such as emu, kangaroo or goannas.
43 Children are taken onto country from a young age, learning how to gather a wide variety of bush foods and to fish. Dinny McKellar has described some of the bush skills he has imparted onto his grandchildren including the reading of animal tracks and knowing how to find the path back.
44 Food that is caught is often cooked and eaten on country. Dinny McKellar eats fish at his camp preparing it by rolling it in mud and cooking it on the coals. With larger catches food is taken back to the community and shared with family. Nina Prasad takes any excess fish that she catches back to town to be shared with the old people who no longer are able to fish.
45 Fires are used for such things as cooking, rituals and for ceremonies on the claim area.
46 Nina Prasad lights a small fire if she feels afraid when fishing. She wards off any malevolent spirits with the fire, as taught to her by her mother. Smoky fires will be lit when people visit sites in case bad spirits are lingering at the site or someone has inadvertently brought a bad spirit to the place.
47 Dinny McKellar recalls when his children were young and living at home he would smoke the house if they were getting bad dreams. Today, when his grandchildren visit he will also make a fire and smoke the house if they can't sleep. He also does this at the campfire at night when camping - collecting a few dogwood branches and throwing them on the fire to smoke his camp.
48 Many Budjiti People light cooking fires when camping within the Claim Area. Phillip Eulo uses fire to cook fish, he learnt this from his grandmother and mother. Phillip recalls that one way of cooking fish in the fire was to "... roll it in mud and put them in the hot ashes. When the mud is hard and cracked the fish is cooked". Bruce Shillingsworth cooks catfish and johnny cakes over a fire near the Caiwarro homestead. If Sam Eulo finds an echidna by the Paroo River, he will sometimes light a fire and cook it. Cooking fires are also lit by Dinny McKellar when he goes camping in Currawinya with his cousin Dulla McKellar.
49 A number of Budjiti People recall activities with their parents and grandparents on the waterways and lakes found within Budjiti country. Dinny McKellar was taken to Lake Wyara and Lake Numalla by his grandparents to collect swan eggs. The flowering of the gidgee trees was a signal that the swans were laying. Lorna McNiven remembered how she went on a rowboat with her parents to fish in Caiwarro Waterhole.
50 Fish from the lakes and the Paroo River has featured in the diet of generations of Budjiti People. Analysis of material at archaeological sites in the application area found evidence that people included in their diets both fish and shellfish. The practice of utilising the waterways and lakes continues to the present today. As stated by Lorna McNiven, "Budjiti People are always fishing on the Paroo". Nina Prasad goes fishing two or three days a week when the fish are biting. Dinny McKellar goes fishing and sometimes takes his cousin Dulla McKellar with him. Favoured fishing locations would be revisited several times a year.
51 Seasonal events such as the flooding of the Paroo River are remembered by many witnesses as times of celebrations. People would walk upstream to meet the flood waters after rains as they signalled when fish stocks along the Paroo would be replenished and there would be food for everyone. Today people return to the river after heavy rains. Sam Eulo returns with his whole family, including his mother Ruby Eulo, to Caiwarro after a fresh flow of water passes down the Paroo.
52 These activities require care and respect as the landscape contains potential dangers. A story recounted to Philip Eulo was how Grandma Toogler had to swim back from an island on Lake Numulla after collecting swan eggs. The creature Muddan-gaddah had caused the lake to rise. Whilst fishing Nina Prasad and Rhonda Cavanough heard the slapping of the Muddan-gaddah in the river. They packed up and returned home as they were wary of the creature.
53 Smoking ceremonies involving burning leaves of the dogwood bush or sandalwood bush are used as protection by the Budjiti People. Millie Shillingsworth for example, smokes herself when near the Paroo River to ward off the Muddan-guddah. Smoking is a means of calling on the good spirits to offer protection to the performer of the ritual. Dinny McKellar conducted a smoking ceremony so that he would be safe when he swam amongst the reeds to collect swan eggs. The spirits would also bring good fortune. Dinny was taught to smoke his fishing line so that the ancestors would know who he was and assist with a catch.
54 Budjiti People perform other rituals when out on country. Judy Shillingsworth throws dirt into the water and calls out "Gouyoo Gouyoo" before throwing in her line. She learnt this from her mother Ruby as well as her grandmother. The same ritual is performed by Nina Prasad to attract the fish. Nina Prasad spits on her bait just as her mother once did.
55 Lorna McNiven remembers when Budjiti People used to meet with neighbouring groups. They used to have ceremonies at the lakes, it had to be when there was an abundance of food. There would be meetings or ceremonies or anything after there had been "a big wet" and the lakes would be full of fish and birds. Millie Shillingsworth also recalls being told about a big ceremonial ground up at Caiwarro. In her outline of evidence she says that she remembers her "Granny saying that all the tribes have different ceremonial sites and the different tribes would meet and exchange things. Aunty Kate told me about ceremonies on Caiwarro, the men would all get out there and have a big feed and dance and do a corroboree and exchange things. Granny used to say it was men's business, it was a meeting place".
56 Traditionally Aboriginal people would travel across the landscape, telling events and stories associated with the landscape. Dinny McKellar acquired many narratives from walking on Budjiti country with his grandparents. The story of the stone people at Caiwarro Waterhole was told to Dinny by his grandmother Jessie. At Lake Thorlinda, Jessie would call out in language asking permission to collect duck eggs. Dinny repeats this ritual when visiting the lakes with his grandchildren, speaking to the spirits. Dinny was told by his family not to approach some places as they were dangerous sites, such as the women's area at the Granites.
57 When Sam Eulo returns to his country with his mother Ruby, she relays past events associated with the land. At a fish trap at Caiwarro, Ruby recalled how fish were caught off the rocks by hand. Sam learnt of the Muddan-gaddah and how it travels up and down the Paroo River, visiting different waterholes. Another story given to Sam is how swimming in the Paroo will cause your hair to go grey prematurely.
58 Gordon Sullivan returns to the fresh and salt water lakes in Currawinya National Park with his family. The younger children are introduced to country. Similarly Liz McNiven has taken her three children when they were young onto country and has told them stories that she learnt herself growing up. The trip in 1991 gave an opportunity for Ben, Akazia and Kaiwarra to learn from their Budjiti elders and experience some of their cultural heritage.
59 Claimants are given skills in interpreting the environment. A difference in colours of saps on eucalypt trees determines whether you had found a food or a medicine. Millie Shillingsworth's mother Ruby Eulo told her not to eat the red sap on gum trees as it was a medicine, which plants were poisonous and which ones can be eaten. Quinine trees can be located in the scrub by looking for bright green leaves, a skill that Liz McNiven received from her cousin Mack John (Max) Sullivan.
60 Claimants were also taught how to read animal tracks found in the sandy regions of Budjiti country. Sam Eulo learnt to distinguish between the tracks of a goanna and an echidna from his mother. From a young age Dinny McKellar was taught how to track. He was taught that emus will avoid imprinting their toes into the ground when nesting. Dinny also learnt to look for the claw marks of an echidna to determine the direction it was taking.
61 Budjiti People fulfil responsibilities of caring for the land by visiting and maintaining sites. Dinny McKellar regularly rides his motorbike to Injamala Waterhole and other significant places close to Eulo to ensure no damage has occurred. He removes any rubbish left lying around. Similarly Liz McNiven will stop at an old camping place at Sheep Station Creek when travelling with her mother to ensure that everything is in order.
62 They engage with Councils and Government agencies to ensure that cultural sites are protected. Dinny McKellar and Keith (Dulla) McKellar participate in cultural heritage work to check that areas are clear of sites and artefacts before the Paroo Shire or Main Roads commence works within the Claim Area. Mick McNiven also works with a Ranger at Currawinya National Park to protect sites. Any dead animals discovered in any of the rockholes are removed. If Mick finds any dirt or muck accumulated in a rock well, he will use a pannikin to scoop out the material, thus ensuring the animals have clean drinking water.
63 Cultural site protection includes teaching the younger generation the significance of different places. Phillip Eulo has shown his grandchildren mud springs and waterholes on his country, sharing stories with them. The association of Caiwarro Waterhole as the residing place of the Muddan-gaddah is known to many Budjiti People who have been taken to the site. Dinny McKellar considers that the creature itself will no longer inhabit the waterway should the oral traditions be no longer passed down to younger people.
64 Jessie Brooks, a Budjiti apical ancestor, is buried on country on Gunamurra station. Two much older graves are located nearby. Smoking ceremonies have been performed at Jessie's grave by her descendants to assist in settling her spirit.
65 Several Budjiti People are buried at Eulo in the cemetery including Thomas (Tommy) McNiven. Thomas's remains were transferred from Canberra by his sister Lorna McNiven so that her brother could be buried on country.
66 There are a number of massacre sites within the Claim Area. Mick McNiven has described one such place where seventy Budjiti People perished near a spring between Currawinya Homestead and the lakes area. The ongoing care of these places are important to Budjiti People. They believe the spirits of their ancestors remain on country and it is important for their graves to be protected.
67 Decision makers for country are aware they carry a responsibility toward country. Lorna McNiven describes the pull to return to country being one of the last of her generation. Ruby Eulo has left a legacy for the group ensuring that her daughters Millie and Judy have received her knowledge over time. They are able to make decisions for country as they have received the required training.
68 Traditionally people would ask permission prior to going onto country. An example today of this custom, is when Kunja people call on Dinny McKellar prior to going hunting in the Budjiti Claim area. Today Budjiti younger members of the group ask their elders to identify which areas should be avoided on country and where the best hunting grounds and fishing locations are to be found.
69 Advice is also sought from Budjiti elders regarding objects found on country. When Phillip Eulo found a bluestone axe head at a site near Eulo, he called his aunt Ruby Eulo to ascertain what should be done with the object. Ruby advised him that it was best left on country.
70 Budjiti People harvest native flora for medicinal purposes. The tobacco bush is applied topically to treat ant bites. Claimants use the bark of the Quinine tree (Alstonia constricta) found in Eulo Common to treat rashes, and for cancer treatment. These trees have been harvested by Budjiti People over many generations, as evidenced by the scarring of the bark. The dogwood also carries medicinal properties. Liz McNiven collects fresh dogwood leaves at Moonjaree Waterhole when travelling to Cunnamulla to share with older family members suffering from coughs and chest complaints.
71 The process of acquiring the knowledge to use these medicinal plants has been described by Liz McNiven. Her aunt Katie Eulo, who was a senior elder of the group, instructed John Mack (Max) Sullivan to teach Liz about the plant. How to identify the trees, the method of removing the bark without killing the tree, and how to prepare the medicines were all imparted onto the novice.
72 Traditionally people from neighbouring language groups would be invited onto Budjiti country to participate in ceremony and to trade. Invitations would be sent using message sticks. The visitors would travel along walking routes. One route entered Budjiti country from the east through Moonjaree Waterhole. Another came from Tinnenburra to Injamala Waterhole following Six (6) Mile Creek, also known as Bow Creek. Dinny McKellar's grandmother, Jintu (Jessie) participated in a ceremony at Injamala Waterhole in the 1940s.
73 A large ceremony ground is located on Caiwarro Station. Budjiti People would meet with other tribes to dance, sing and to exchange items.
74 When claimants bring non-Budjiti People onto country, a smoking ceremony is performed for those visitors. Dinny McKellar explained that this custom stemmed from the time when ceremonies were traditionally held on country. Dinny's grandfather Charlie Turner told him that if a visitor wished to dance a new ceremony, the visitor remained respectfully silent until they had been smoked by their hosts.
75 A contemporary visit onto country by non-claim group members occurred in 1991 when Budjiti People accompanied photographers Wesley Stacey and Narelle Perroux and the archaeologist Robert Neale on an AITSIS funded trip. Places visited within the application area included Caiwarro Station, Currawinya Station, Eulo, Boorara Station and the Paroo River. The Budjiti People that participated in the trip included Charles McNiven, Tom McNiven, Lorna McNiven, Doreen Lord, Mick McNiven, Lorna McNiven and Liz McNiven. The photographs recorded Budjiti visiting sites and performing cultural activities. Stories were shared about the sites allowing younger people to learn from their elders and graves were visited and smoked. At Caiwarro, Robert Neale registered a grave and other cultural sites.
76 That recital of some of the available material shows clearly that:
(a) at the time of sovereignty, the ancestors of the Budjiti People comprised a society (the pre-sovereignty society) united in and by their acknowledgment and observance of a body of accepted laws and customs (traditional laws and customs);
(b) pursuant to the traditional laws and customs the pre-sovereignty society held rights and interests in the Claim Area;
(c) the pre-sovereignty society has substantially maintained its identity and existence from generation to generation by the acknowledgment and observance of the traditional laws and customs which have continued to be acknowledged and observed substantially uninterrupted by each successive generation to the present time;
(d) the Budjiti People possess rights and interests in the Claim Area under the traditional laws and customs acknowledged and observed by them; and
(e) by the traditional laws and customs still observed and acknowledged by the Budjiti People, they have a connection with the Claim Area.
77 In the light of that assessment, I am well satisfied that, in terms of s 87(1A) it is appropriate to make the Determination. The parties, with the benefit of that material, consent. It is an informed agreement between the parties. The process followed by the State, particularly how an assessment of the underlying evidence as to the existence of native title is carried out, has been thorough and professional. The parties have independent and competent legal representation.
78 The parties agree that native title exists in relation to the Claim Area and that the native title rights and interests are held non-exclusively by the Budjiti People.
79 The nature and extent of the native title rights and interests in relation to the Claim Area where native title is recognised are the rights to:
(a) access, be present on, move about on and travel over the application area;
(b) camp, and live temporarily on the application area as part of camping, and for that purpose build temporary shelters;
(c) hunt, fish and gather on the land and waters of the application area for personal, domestic and non-commercial communal purposes;
(d) take, use, share and exchange natural resources from the land and waters of the application area for personal, domestic and non-commercial communal purposes;
(e) take and use the water of the application area for personal, domestic and non-commercial communal purposes;
(f) light fires on the application area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation;
(g) conduct ceremonies and hold meetings on the application area;
(h) teach on the area the physical and spiritual aspects of the application area;
(i) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs, and protect those places and areas from physical harm;
(j) be buried and bury native title holders within the application area; and
(k) be accompanied onto the application area by certain non-native title holders, being:
(i) spouses and other immediate family members of the native title holders, pursuant to the exercise of traditional laws and customs; and
(ii) people required under the traditional laws acknowledged and traditional customs observed by the native title holders for the performance of, or participation in, ceremonies.
80 Those rights and interests are rights and interests that are capable of recognition by the common law of Australia.
81 The proposed consent determination contains determination maps that include all of the area that the parties agree is land and waters where native title exists within the Claim Area.
82 I note that the Budjiti People propose that the native title rights and interests be held by the Budjiti Aboriginal Corporation as trustee pursuant to s 56 of the NT Act, so the proposed determination contains orders pursuant to ss 56 and 57 of the NT Act.
83 I accordingly consider it appropriate to make the orders in paragraph 17 of the proposed determination that the Budjiti Aboriginal Corporation be determined to be the prescribed body corporate for the purposes of s 56(1) of the NT Act to perform the functions mentioned in s 57(1) of the NT Act after becoming a registered native title body corporate. I am satisfied that that body is a prescribed body corporate, in accordance with Regulation 4 of the Native Title (Prescribed Body Corporate) Regulations (1999) and that Melissa Bryan is a Budjiti person, and a member of the group of persons jointly comprising the applicant in these proceedings, so that the nomination made by her in her letter to the Court dated 19 April 2015 is a written nomination in accordance with s 56(2) of the NT Act.
84 In all the circumstances, I am well satisfied that it is appropriate to make a Determination that the Budjiti People hold the native title rights and interests over the claim area as its traditional owners, in accordance with the proposed determination.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.